The High Court rejected an application challenging the Jail Superintendent's authority to condone late surrender. Relying on precedents, the Court held that power to waive delay lies solely with the Superintendent, not the judicial forum, and dismissed the petition.
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12184 of 2022
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MAHESH @MAYALO CHUNILAL RATHOD
Versus STATE OF GUJARAT & 1 other(s)
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Appearance:
THROUGH JAIL for the Applicant(s) No. 1 for the Respondent(s) No. 2,3 MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/11/2022
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor waives service of Rule on behalf of the respondent State.
2. The present application is filed for regularizing of late surrender by the petitioner-accused.
3. Learned Additional Public Prosecutor referred to the decision of the Division Bench of this Court in Vikas Narendrabhai v. State of Gujarat and another in Criminal Misc. Application No.1360 of
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
2014 (for regularisation of late
surrender) in Criminal Appeal No.2884 of
2008 and the judgment of this Court dated
10.11.2017 in Criminal Misc. Application
(for regularisation of late surrender)
No.16444 of 2017 and allied matters to
submit that the petition is not
maintainable since it is only the Jail
Superintendent who has authority to
condone the late surrender in accordance
to the Jail Manual and the Prisons Act.
4.In the case of Vikas Narendrabhai
(supra), the Division Bench after
considering the provisions of Section 48A
of the Prisons Act and Rule 1287 of the
Gujarat Jail Manual has observed that, if
any prisoner fails without sufficient
cause to observe any of the conditions on
which his sentence was suspended,
remitted or furlough or parole was
granted to him, he shall be deemed to
have committed a prison offence, and the
Superintendent may, after obtaining his
explanation, punish such offence as
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
provided under the Prisons Act. The
Division Bench has further observed that
if the temporary bail is granted in
exercise of the powers conferred under
the Code of Criminal Procedure, the Court
would have no power to set aside
subsequent punishment imposed under the
Jail Manual nor can it regularise the
default committed by the petitioner after
the imposition of punishment. The Code of
Criminal Procedure does not permit the
Appellate Court granting suspension of
sentence to set aside the subsequent
offence committed under the Prisons Act
for violation of the condition of
suspension of the sentence passed in
exercise of its power to grant temporary
bail, and thus, held that the petitioner
would be entitled to have condonation of
delay in surrendering before the jail
authority and the appropriate authority
has to decide such questions in
accordance with law if the aggrieved
approaches such authority.
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
5.In Criminal Misc. Application (for
regularisation of late surrender)
No.16444 of 2017 of Akil Noormahmadbhai
Kachara v. State of Gujarat and others;
this Court has referred to Sections 3(2)
and 3(3) of the Prisons Act, 1894, which
defines “criminal prisoner” and
“convicted criminal prisoner”, and after
taking into consideration the provisions
of Section 48A of the Prisons Act, 1894,
the Coordinate Bench has observed that
the said Section 48A does not distinguish
between criminal prisoner and or
convicted prisoner, and has held that,
Section 48A would apply uniformly to both
the class of prisoners, and therefore,
observed that the undertrial prisoner is
committed to jail custody under warrant
of the Court then such undertrial
prisoner are brought under the definition
of criminal prisoner, to whom the
provisions of Section 48A of the Prisons
Act would apply.
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
6. In view of the said observations, it was held that Clause 1287 of the Jail Manual would also apply uniformly to the criminal prisoner as well as undertrial prisoner. Clause 1287 of the Jail Manual reads as under:
”1287. In each case of later
surrender or breach of any of
the conditions of furlough or
parole, the necessary punishment
or punishments should be awarded
by the Superintendent of Prison
with due regard to the
circumstances of each case. All
the punishments mentioned below
or in Section 48-A of the
Prisons Act, 1894 need not
necessarily be awarded in each
case but it is left to the
discretion of the Superintendent
to decide which particular
punishment or punishments should
be awarded. If, in certain
cases, the Superintendent is
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
satisfied that the overstayal
was for good or sufficient
reasons, he may excuse the
prisoner. However, before
awarding any punishment, the
Superintendent should invariably
obtain a prison's explanation in
each case of overstayal of
period or breach of any
conditions of furlough or
parole:
(1) A maximum cut of 5 days's
remission for each of overstay;
Provided that where the prisoner
has not sufficient remission to
his credit, he shall cease to
earn remission in future for
suchperiodasthe
Superintendent may direct;
(2) Stoppageofcanteen
concession for a period of not
less than one month and not more
than three months.
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
(3) Withholding concession of
either interviews or letters or
both, for a maximum period of
three months.
(4) In cases of furlough, the
furlough period not to be
counted towards sentence.”
7.The above-referred Clause 1287 makes it
explicit that in case of late surrender
or breach of any of the conditions of
furlough or parole, the necessary
punishment or punishments should be
awarded by the Superintendent of Prison
with due regard to the circumstances of
each case. The discretion is left to the
Superintendent to decide which particular
punishment or punishments should be
awarded and the Superintendent comes to
the conclusion that the overstayal of
period or breach of any conditions of
furlough or parole were on sufficient
reason, he may in his discretion excuse
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
the prisoner. The Superintendent
therefore before awarding any punishment
invariably has to obtain the prisoner
explanation in each of the case of
overstayal of period or breach of any
conditions of furlough or parole.
8.Thus, this Court is also of the
consistent view that, in case of late
surrender after temporary bail period, it
would be the Jail Superintendent who has
to undertake the exercise in accordance
with Clause 1287 of the Jail Manual and
the discretion would be on the Jail
Superintendentafteraffording
opportunity to the prisoner to explain
the cause of his overstayal of period or
breach of any conditions of furlough or
parole. Hence to the provisions to Clause
1287 of Jail Manual, it is the prisoners
to approach the Jail Superintendent to
consider their prayer for condoning the
late surrender, which the Jail
Superintendent, in turn, has to consider
the individual case in accordance to the
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R/SCR.A/12184/2022 ORDER DATED: 25/11/2022
provisions made under Clause 1287 of the
Jail Manual. Hence, there is no reason to
entertain this petition.
9. With the aforesaid observations and directions, the petition stands dismissed. Rule is discharged.
The petitioner be informed.
(GITA GOPI,J)
Maulik
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2 issues framed by the court
Whether the present application for regularizing late surrender is maintainable before this Court or falls under the jurisdiction of the Jail Superintendent.
Whether the Court has power to regularize default committed by a prisoner after imposition of punishment under the Prisons Act.
Colour shows how this judgement treated each authority
Vikas Narendrabhai v. State of Gujarat and anotherReferred¶17
Vikas Narendrabhai v. State of Gujarat and another in Criminal Misc. Application No.1360 of 2014 (for regularisation of late surrender) in Criminal Appeal No.28
judgment of this Court dated 10.11.2017 in Criminal Misc. Application (for regularisation of late surrender) No.16444 of 2017Referred¶17
Akil Noormahmadbhai Kachara v. State of Gujarat and othersReferred¶26
Akil Noormahmadbhai Kachara v. State of Gujarat and others; Criminal Misc. Application (for regularisation of late surrender) No.16444 of 2017
MAHESH @MAYALO CHUNILAL RATHOD
STATE OF GUJARAT
GITA GOPI
As recorded by the court registry
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